Keisselbrack v. Livingston

The Chancélleos.. This a bill for the specific performance of an agreement in writing, to execute a lease for dives, “ containing the usual clauses, restrictions and reservations contained in the leases given by the defendant.” The agreement was made and executed in 1803, with William Fritz, who was in possession of the land, and continued thereon, until he assigned his right and interest, under that agreement, to the present plaintiff, in 1805, who took possession, with the knowledge and consent of the defendant, and has remained in possession ever since, and paid the rent down to 1813. The defendant, in August, 1814, offered to the plaintiff a lease with a provision in it, that upon every sale of the demised premises, one fifth of the purchase or consideration money, should be taken by the defendant to his own use. The bill states that such a lease was offered and refused, and charges that the parties agreed and declared, at the time of the execution of the agreement in writing, in 1803, that no such quarter or fifth sales should be demanded or paid. The defendant does not, in direct and clear terms, deny any such agreement, that the farm should be exempt from quarter or other sales, but denies any other or different contract than tfye one set forth.” By contract, here he evidently means the agreement in writing; and he says, further, that the parol agreement is falsely charged, but it is not stated wherein, or to what extent; and as to the validity of any such agreement, he pleads the statute of frauds. The only material point in this case is, whether the lease to be given, should or should not contain a reservation of [147] one fifth of the money on every sale, to the defendant, and his heirs and assigns. The testimony taken in the cause establishes, beyond all doubt, the parol agreement as charged, and that the writing, if it requires a different construction and operation, has been so far drawn and executed in mistake. The three witnesses (George Amaigh, William Fritz, and John Loomis,) establish the fact most clearly, and I am not at liberty to discredit witnesses who are unimpeached. The only question is as to the competency of the proof. The statute of frauds does not appear to me to have any bearing upon this case. The agreement for the three life lease, is in writing, and it has been partly performed by possession taken and transferred, and rent paid. The right of the plaintiff rests upon the contract in writing, and the only inquiry is, whether there is not a mistake in the generality of the expression, that the lease was to contain the “ usual clauses,” he., and whether the parties did not intend an exception in respect to the quarter sales. There is no doubt of their declared intention to make such an exception, at the time the agreement was drawn ; and I am induced to think that the writing is, and ought to be, susceptible of amendment and correction, in that particular. This is not an undertaking to supply a defective agreement by parol proof, or to construe it, by resorting to previous negociations and conversations between the parties. It is making the writing speak what the parties intended it should speak, when they executed it; and I see no objection to the admission of parol proof in this case, that would not equally apply to every case of an attempt to correct, by parol proof, a mistake in a deed. This is a peculiar case, in which parol proof is necessary, at all events, to give meaning and effect to that part of the writing which refers to the usage of the defendant, in drawing his leases. The reference is to a matter of fact, since what are usual clauses in his leases, must be shown by proof. [148] dehors the instrument. The agreement was not, in the first instance, perfect, without reference to matters of fact, aliunde. Parol proof is let in by the agreement itself, in order to settle the terms of the lease; and that being the case, there is less objection, in principle or policy, to carry the parol proof so far as to show what was the actual understanding of the parties, at the time, as to those terms. The Master of the Rolls stopped short of relief, in the case of Woollam v. Hearn, (7 Ves. 211.) where a mistake was alleged, because he said there was no precedent for allowing parol proof to correct a mistake, in favour of a plaintiff, seeking specific performance of an agreement. He admitted, however, that the proof before him made out the plaintiff’s case, and that it would have been received as sufficient to refuse relief, if the defendant had sought a specific performance. I am not sufficiently instructed, at present, to admit the soundness of this distinction, which holds parol evidence admissible to correct a writing as against, but not in favour of a plaintiff, seeking specific performance of a contract. Lord Hardwiclce does not appear to have been aware of any such distinction, in the two cases to which Sir Wm. Grant refers. Lord Thurlow rejected parol proof in the case of Irnham v. Child, (1 Bro. 92.) when offered by a plaintiff seeking performance of an agreement, and at the same time seeking to vary it by parol proof, but he went upon general grounds, applicable to such proof as coming from either party. And why should not the party aggrieved by a mistake in the agreement, have relief as well where he is plaintiff, as where he is defendant ? It cannot make any difference in the reasonableness and justice of the remedy, whether the mistake was to the prejudice of one parly or the other. If the Court has a competent jurisdiction to correct such mistakes, (and that is a point understood and settled,) the agreement when corrected, and made to speak the real sense of the parties, ought to be enforced, as well as any other agreement perfect in the first instance. It ought to [149] have the same efficacy, and be entitled to the same protection, when made accurate under the decree of the court, as 7 # when made accurate by the act of the parties. The one case illustrates the other — res accendent lumina rebus. But without pursuing this point further, at present, it is sufficient to observe, that we are obliged, by the particular terms of this agreement, to deal with written and parol proof, to ascertain the clauses, and restrictions, and reservations that were intended. The written agreement rests for its consideration and performance, partly upon the aid of' parol proof. And such proof being let in, by the contract itself, it may, upon the very principle admitted by the agreement, be applied to correct any mistake manifestly shown to exist in the general and unqualified terms of that part of the written agreement which depends for its explanation upon external proof. I shall, accordingly, direct a specific performance of the 1,1 „ 1 agreement as corrected by the proof, and shall award costs, as was done by Lord HardwicJce, in Bingham, v. Bingham, (1 Ves. 126.) in a decree correcting a mistake. Decree accordingly. Footnotes [1] Parol proof to correct a mistake in a contract, is admissible, as well in favour of the plaintiff, as the defendant. [2] Costs awarded on a decree correcting a contract, on a purpose, and for a specific performance.